Johnston v. JohnstonÂ
256 N.C. App. 476
| N.C. Ct. App. | 2017Background
- Husband (William Johnston) and Wife (Allyson Johnston) separated and have two minor children. Husband filed a custody/divorce/equitable distribution complaint in Caswell County on 15 Sept 2015, served 22 Sept, then voluntarily dismissed it on 1 Oct 2015.
- Wife filed a custody/child support/post‑separation support/alimony complaint in Wake County on 8 Oct 2015; a temporary custody hearing was set for 15 Dec 2015.
- Husband intentionally avoided service in Wake County; on 13 Oct 2015 he refiled a custody/divorce/equitable distribution complaint in Caswell County (without noting the Wake County suit).
- Wife moved to dismiss the Caswell action for lack of jurisdiction because her Wake County custody action had been filed first; the Caswell court nevertheless entered a temporary custody/visitation order (based on pleadings/arguments only) and denied dismissal.
- Caswell court relied on Coble and discussed the UCCJEA and forum‑shopping; Wife appealed the denial of dismissal, challenging subject‑matter jurisdiction over the custody claim.
Issues
| Issue | Plaintiff's Argument (Johnston) | Defendant's Argument (Allyson) | Held |
|---|---|---|---|
| Whether Caswell County had subject‑matter jurisdiction over the custody claim when Wake County custody suit was filed first | Caswell was proper because Wife had been served in Caswell before Husband was served in Wake and Caswell had personal jurisdiction; also argued Wife "tricked" him into dismissing the first Caswell filing | Wake County had priority because Wife filed the custody action there first; first filed action controls for intrastate custody matters | Court reversed: Wake County (the first filed custody action) controls; Caswell lacked jurisdiction over custody; dismissal should have been granted |
| Whether service/avoidance of service affects which county has jurisdiction in intrastate custody disputes | Service timing matters; Husband emphasized Wife was served in Caswell earlier | Filing date, not service, governs which intrastate custody action has jurisdiction | Court held first filed—not first served—determines jurisdiction; avoidance of service does not change result |
| Applicability of the UCCJEA to this dispute | Caswell court relied on UCCJEA principles to condemn forum shopping | UCCJEA is inapplicable because all parties and children are within North Carolina (intrastate) | Court explained UCCJEA is for interstate cases; intrastate disputes are governed by North Carolina precedent and venue rules |
| Whether temporary custody order entered in Caswell must stand if court lacked jurisdiction | Husband relied on Caswell court’s finding of continuing jurisdiction and temporary order | Wife argued any custody order is void if entered by a court lacking subject‑matter jurisdiction | Court vacated the Caswell temporary custody order because the court lacked subject‑matter jurisdiction over custody |
Key Cases Cited
- Coble v. Coble, 229 N.C. 81 (N.C. 1948) (interstate custody case holding a court lacks authority to adjudicate custody when the res and custodian are outside the forum state)
- Benson v. Benson, 39 N.C. App. 254 (N.C. Ct. App. 1978) (intrastate rule that the county where the first custody action is filed has jurisdiction; subsequent independent custody suits are void)
- Shoaf v. Shoaf, 219 N.C. App. 471 (N.C. Ct. App. 2012) (denial of dismissal raising issues of law reviewed de novo)
- In re E.X.J., 191 N.C. App. 34 (N.C. Ct. App. 2008) (discussing the UCCJEA and its inapplicability to purely intrastate custody disputes)